Hernandez v. State, 04-81-00053-CR

• Decision Date: 28 July 1982
• Docket Number: No. 04-81-00053-CR,04-81-00053-CR
• Court: Texas Court of Appeals
• Parties: Ralph HERNANDEZ, Appellant, v. STATE of Texas, Appellee.

Page 617

636 S.W.2d 617

Ralph HERNANDEZ, Appellant, v. STATE of Texas, Appellee.

No. 04-81-00053-CR.

Court of Appeals of Texas, San Antonio.

July 28, 1982.

Bill J. Klingemann, Lippe, Klingemann & Wester, P. C., Seguin, for appellant.

Houston C. Munson, Jr., Dist. Atty., Gonzales, for appellee.

Before ESQUIVEL, CANTU and BASKIN, JJ.

OPINION

CANTU, Justice.

This is an appeal from a conviction for rape of a child. In a bench trial, the court found appellant guilty and assessed punishment at sixteen (16) years' confinement.

Appellant and the minor victim's mother were both indicted for this offense. In pertinent part, the indictment alleged,

(T)hat Ralph Hernandez and Ema G C on or about the 28th day of April, A.D. 1978, and anterior to the presentment of this Indictment, in the county and State aforesaid, did then and there unlawfully, intentionally and knowingly have sexual intercourse with N C, a female younger than 17 years of age and not the wife of the said Ralph Hernandez or of Ema G C.

The State relied entirely upon the testimony of two witnesses, the minor victim and her mother, to prove up a case against appellant of rape of a child under the provisions of Tex.Penal Code Ann. § 21.09 (Vernon Supp.1981). ¹ Appellant did not testify but did offer evidence supporting the improbability of the truth of the charge.

The minor victim's mother testified at the trial and admitted to the unpardonable act of subjecting her minor daughter to the sexual appetite of her paramour. Whether she encouraged or initiated the alleged despicable act is not entirely clear from the record. Her admitted active participation, on the other hand, clearly established her status as an accomplice as a matter of law.

By his initial ground of error, appellant attacks the sufficiency of the evidence to support the conviction. More specifically, appellant complains that the testimony of the victim was insufficient on the issue of penetration.

The record reflects the following pertinent testimony by the victim relating to the issue of penetration,

Q. What did Ralph do after he got on top of you, N?

A. He ... put his private thing in mine.

Q. Okay. Then can you tell what else happened that night? N, did it hurt when Ralph put his private thing into you?

A. Yes.

The victim further testified as follows,

Q. You went to school. Okay. At the time-you say-tell me again what Ralph did.

A. He put his private thing in mine.

Q. What does that mean?

A. He had sex with me.

We hold that this testimony alone was sufficient to establish the penetration required in a rape case. See Garcia v. State, 563 S.W.2d 925 (Tex.Cr.App.1978); Cowan v. State, 562 S.W.2d 236 (Tex.Cr.App.1978); Sherbert v. State, 531 S.W.2d 636, 637 (Tex.Cr.App.1976).

The question before this court is, however, of greater magnitude than a simple sufficiency of the evidence challenge to an isolated element of the offense. Appellant, in his second and third grounds of error, challenges the sufficiency of the corroboration required in this case. In view of appellant's additional challenge to the lack of corroboration of the only two State witnesses, a sufficiency review may not be had without first addressing the corroboration challenges.

Two articles are relevant to this appeal. Tex.Code Crim.Pro.Ann. art. 38.07 (Vernon 1979), as enacted effective September 1, 1975, provides,

A conviction under Chapter 21, Penal Code, is supportable on the uncorroborated testimony of the victim of the sexual offense if the victim informed any person, other than the defendant, of the alleged offense within six months after the date on which the offense is alleged to have occurred. The court shall instruct the jury that the time which lapsed between the alleged offense and the time it was reported shall be considered by the jury only for the purpose of assessing the weight to be given to the testimony of the victim. (footnote omitted).

Tex.Code Crim.Pro.Ann. art. 38.14 (Vernon 1979) provides,

A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.

The State argues that the testimony of a victim under Tex.Code Crim.Pro.Ann. art. 38.07 (Vernon 1979), can be corroborated by an accomplice witness, thereby providing the sufficient probative evidence needed to support a conviction. We cannot agree.

Prior to amendment by the Legislature in 1975, Article 38.07, supra, addressed only the offense of seduction. See 1965 Tex.Gen.Laws, ch. 722, § 1, at 466-repealed by 1973 Tex.Gen.Laws, ch. 399, § 3(b), at 995. Prior law, Tex.Code Crim.Pro. art. 709 (1925) and 1891 Tex.Gen.Laws, ch. 33, § 1, at 34, 10 H. Gammel, Laws of Texas 36 (1898), also addressed the need for corroboration of the victim in seduction cases. Article 709 provided,

Female Alleged to be Seduced -In prosecutions for seduction, the female alleged to have been seduced shall be permitted to testify, but no conviction shall be had upon her testimony unless the same is corroborated by other evidence tending to connect the defendant with the offense charged.

In 1975, the 64th Legislature extended the requirement for corroboration to include a necessity for corroborating the testimony of victims of all sexual offenses under Chapter 21, Penal Code, ² without regard to the victim's age, except in those cases where an outcry is made within six months after the date on which the offense is alleged to have occurred. In doing so, the Legislature sought to treat all victims identically by doing away with need for corroboration when a timely outcry is made to someone other than the defendant.

Under the law as it existed before enactment of the current Article 38.07, minor children enjoyed a favored status and were exempted from the requirement for corroboration of their testimony in those sex offenses where consent was not possible, without regard to timely outcry. Such was not always the case, ³ but it appears that the trend evolved toward a favored status through case law. Hohn v. State, 538 S.W.2d 619 (Tex.Cr.App.1976); Carter v. State, 506 S.W.2d 876 (Tex.Cr.App.1974); Williams v. State, 481 S.W.2d 119 (Tex.Cr.App.1972); Uhl v. State, 479 S.W.2d 55 (Tex.Cr.App.1972); Bass v. State, 468 S.W.2d 465 (Tex.Cr.App.1971); Hindman v. State, 152 Tex.Cr.R. 75, 211 S.W.2d 182 (1948); Raifsnider v. State, 146 Tex.Cr.R. 578, 176 S.W.2d 952 (1943); Armstrong v. State, 95 Tex.Cr.R. 107, 252 S.W. 777 (1923); Moore v. State, 90 Tex.Cr.R. 604, 236 S.W. 477 (1921). In Hohn v. State, supra, the Court of Criminal Appeals, in one of the last cases to arise outside the scope of present Article 38.07, recognized the pending effective date of the statute and finding it unnecessary to do so, declined to consider whether the prosecutrix's testimony had been corroborated.

Historically speaking, under the common law, the uncorroborated testimony of an accomplice was sufficient to sustain a conviction. See Hoyle v. State, 4 Tex.Ct.App. 239 (1878), Bailey v. State, 100 Tex.Cr.R. 110, 271 S.W. 627 (1925). It is only by virtue of legislative enactments that an accused may not be convicted of a crime except upon the corroborated testimony of an accomplice. Having enacted such a statute, our Legislature also has the authority to rescind all or any part of it, or to make such rules inapplicable to certain designated offenses. Bailey v. State, supra.

By statutory exception the Legislature has, at different times, dispensed with the need for corroboration. See Gross v. State, 169 Tex.Cr.R. 454, 334 S.W.2d 809 (1960) (practice of dentistry violation); Lemasters v. State, 164 Tex.Cr.R. 108, 297 S.W.2d 170 (1956) (gaming violation); Burton v. State, 149 Tex.Cr.R. 579, 197 S.W.2d 346 (1946) (liquor laws violation) ⁴; Pope v. State, 114 Tex.Cr.R. 551, 26 S.W.2d 635 (1929) (game, fish and oysters violations). Other exceptions have been created by the courts, in circumstances in which the proceeding did not subject the accused to a conviction. See Soliz v. State, 171 Tex.Cr.R. 376, 350 S.W.2d 566 (1961) (revocation of probation); In the Matter of S. J. C., 533 S.W.2d 746 (Tex.) cert. denied 429 U.S. 835, 97 S.Ct. 101, 50 L.Ed.2d 100 (1976) (juvenile adjudication). ⁵

Prior to the amendment to present Article 38.07, a conviction for rape, other than for rape of a minor child (statutory rape), could not be sustained if it was based upon the uncorroborated testimony of a prosecutrix who failed to make an outcry or prompt report of the rape when there was a reasonable opportunity to do so. Villareal v. State, 511 S.W.2d 500 (Tex.Crim.App.1974); White v. State, 478 S.W.2d 506 (Tex.Cr.App.1972). However, the rule requiring corroboration of the testimony of a victim who fails to promptly report the rape, was applicable only when consent was an issue. Villareal v. State, supra, Hindman v. State, supra. Because statutory rape cases, as a matter of law, involved the inability to consent, the rule was not applied to those cases.

Under the general rule concerning accomplice witnesses, a conviction cannot be based on an accomplice witness' testimony unless there is additional evidence to connect the defendant with the crime. Article 38.14, supra.

Article 38.07, supra, has been termed an exception to the rule in Article 38.14. Alonzo v. State, 575 S.W.2d 547 (Tex.Cr.App.1979)- ; Vickery v. State, 566 S.W.2d 624 (Tex.Cr.App.1978). Therefore, if a witness is an accomplice other than the victim, corroboration of his testimony is required under Article 38.14, supra. If, however, the accomplice is also the victim of the offense, or merely the victim without also being an accomplice, Article 38.07 will be invoked if outcry is made within the prescribed period. Once Article 38.07 has been properly invoked, no corroboration of the victim or victim/accomplice's testimony is required to support a...